SEC subpoenas compel production of documents and testimony that could determine whether you face enforcement action. Responding properly protects your rights while demonstrating appropriate cooperation. Mishandling subpoena responses can create additional legal problems beyond the underlying investigation.
Types of SEC Subpoenas
The SEC issues document subpoenas requiring production of specified records and testimony subpoenas compelling individuals to appear for sworn examination. Document subpoenas describe categories of materials to be produced, often casting wide nets that encompass years of communications, financial records, and business documents. Testimony subpoenas require appearance before SEC staff for questioning under oath.
Subpoenas issued during formal investigations carry the force of law. Failure to comply without valid legal objection can result in federal court enforcement actions, contempt findings, and adverse inferences in subsequent proceedings. Unlike informal document requests, formal subpoenas cannot simply be ignored.
Initial Response Steps
Upon receiving an SEC subpoena, immediately engage securities defense counsel experienced in SEC matters. Counsel will help interpret the subpoena's scope, identify potential objections, and develop a response strategy. Simultaneously, implement a litigation hold to preserve all potentially responsive documents, including electronic communications, even if they might be damaging.
Contact the SEC staff attorney identified on the subpoena to discuss the investigation's scope and negotiate reasonable response timelines. SEC staff often agree to extensions when recipients demonstrate good faith efforts toward compliance. These conversations also help clarify what the SEC is really seeking, which may be narrower than the subpoena's broad language suggests.
Document Collection and Review
Responding to document subpoenas requires systematic collection of all potentially responsive materials. This typically involves searching email systems, shared drives, personal devices, and physical files. Custodians who possess responsive documents must be identified and their files comprehensively searched.
Collected documents require review for privilege, relevance, and responsiveness. Attorney-client privileged communications need not be produced, but you must prepare a privilege log identifying withheld documents. Work product doctrine may protect certain litigation preparation materials. Documents containing sensitive personal information may warrant negotiated protections.
Objections to Subpoenas
Various objections may apply to SEC subpoenas. Requests seeking privileged information, imposing undue burden, or lacking reasonable scope can be challenged. However, objections must be raised promptly and professionally, typically through counsel's communications with SEC staff rather than formal motions unless negotiations fail.
Overbroad requests can often be narrowed through negotiation. The SEC generally prefers receiving relevant information efficiently over litigating subpoena scope. Working constructively with staff to define manageable response parameters usually serves everyone's interests better than protracted disputes.
Testimony Preparation
If you receive a testimony subpoena, thorough preparation with counsel is essential. SEC testimony occurs under oath with court reporters present, creating a verbatim record that can be used in subsequent proceedings. Understanding the scope of the investigation, reviewing relevant documents, and practicing responses to anticipated questions helps ensure you testify accurately and completely.
Witnesses have rights during SEC testimony, including the right to counsel's presence, the right to review documents before answering questions about them, and the right to take breaks. Understanding these rights helps manage the stress of examination and ensures the process remains fair.